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Aaron Cedres in Rainey Park in the Bronx, where he sometimes slept when he was homeless. Felony charges cost him his job, apartment and car.Credit
Karsten Moran for The New York Times

Defendants Kept in the Dark About Evidence, Until It’s Too Late

New York is one of 10 states where prosecutors can wait until just before trial to share evidence, which critics say is unfair. But a new bill could change the rules.

By BETH SCHWARTZAPFELAUG. 7, 2017

In September 2013, a fight broke out on the sidewalk outside the Bronx nightclub where Aaron Cedres worked as a bouncer. It was a confusing scrum of about a dozen people, and one man suffered a broken jaw and deep slashes to his head and back.

A month later, Mr. Cedres — then a 25-year-old father with no criminal record — was charged with gang assault, which carried the prospect of 25 years in prison. Cameras had been posted outside the club, and the prosecutor said the tapes looked bad for Mr. Cedres, his lawyer recalled.

Mr. Cedres was offered a plea deal: five years behind bars. He insisted that he had thrown one punch to help break up two men, and he urged his lawyer to get the footage.

But Mr. Cedres was up against entrenched legal practices. New York is one of 10 states where prosecutors can wait until just before trial to turn over witness names and statements and other key evidence known as discovery, which backs up criminal charges. It is a strategic advantage that critics call unfair and unnecessary.

Some discovery — such as video footage — is supposed to be turned over on request, but defense attorneys complain that the requests are often countered, delayed or ignored. They say the restrictive discovery rules put people like Mr. Cedres into a high-stakes dilemma: Plead guilty without seeing all the evidence, or risk a trial that could end in a prison sentence much longer than what they might get under a plea.

Most take the deal. According to the State Division of Criminal Justice Services, more than 98 percent of felony arrests that end in convictions occur through a guilty plea, not a trial, a slightly higher number than national figures.

For decades, legislation to require prosecutors to turn over evidence earlier has run into stiff opposition from New York’s district attorneys, who present a powerful counterargument: the safety of witnesses. More than a dozen such bills have failed in the past quarter-century.

Now, the politics show signs of shifting, and a renewed effort is underway to push the Legislature to overhaul state discovery rules, following the example of traditionally more conservative states such as North Carolina and Texas.

This year, the New York State Bar Association for the first time is throwing its weight behind a new Assembly bill requiring prosecutors to automatically turn over police reports, witness names and statements, and grand jury testimony early in a case. Their endeavor is backed by the Legal Aid Society and the Innocence Project, a nonprofit that helps exonerate people who have been wrongly convicted, although it faces a difficult road. There is no companion bill in the Senate, and Gov. Andrew M. Cuomo has not embraced the idea.

Original security footage obtained from the New York City Police Department showing Aaron Cedres in a brawl outside the club where he used to work in 2013.

AUG. 7, 2017

Celina Fang/The Marshall Project

At the same time, the state court system is considering providing judges with a new tool to ensure that prosecutors turn over potentially exculpatory information.

The disadvantage that defendants face in New York has begun to draw more attention, said Carlton Berkley, a retired New York City police detective. He leads Discovery for Justice, a Bronx group founded in 2013 to oppose the discovery rules that some critics deride as New York’s “blindfold law.”

“When I was a cop, I always believed the criminal justice system was on the level,” said Mr. Berkley, who was a critic of some departmental practices and who has four brothers who have served time in prison. “I’m embarrassed now to say that.”

The efforts in New York reflect a national trend toward more open discovery laws. Ohio broadened its laws in 2010. New Jersey and Utah now require that discovery be provided before a guilty plea. The American Bar Association, whose standards often serve as models for state laws, has convened a task force to update its criminal discovery standards for the first time in more than 20 years.

Even in New York, some prosecutors already go beyond what the law requires. The Brooklyn district attorney’s office has long provided open and early discovery in most cases. The acting district attorney, Eric Gonzalez, said his office sometimes sought protective orders to shield vulnerable witnesses or, more rarely, to relocate them.

“We’ve been able to find the right balance in how to keep our witnesses safe and also make sure the process is as transparent and open as possible,” Mr. Gonzalez said.

State lawmakers, facing resistance from prosecutors, have been reluctant to follow that tide.

Prosecutors describe frightening encounters between the accused and witnesses and warn of violence in a “no snitching” culture intensified by social media. Prosecutors say the current law helps protect witnesses by allowing them to withhold witness information indefinitely, since so few cases go to trial.

Jack Ryan, the chief assistant district attorney in the Queens district attorney’s office, recalled a recent case in which a witness was photographed on his way into the courthouse.

“Before the witness even testified, that video was uploaded on Facebook identifying the guy as a snitch,” Mr. Ryan said. “There’s a legitimate fear.”

‘Our Guy Was Going to Prison’

Mr. Cedres and his lawyer, Kristin Bruan, said that at first he had refused the plea deal, but that as the months had worn on, he had begun to consider it. Pending felony charges meant that he lost his job, then his apartment and car. His girlfriend moved into her mother’s house with the couple’s infant daughter, and Mr. Cedres was homeless.

Ms. Bruan wondered if Mr. Cedres accurately remembered the chaotic event, or if his single punch was enough to make him guilty under the law. Prosecutors in this case turned over police reports indicating that the victim and his girlfriend had found Mr. Cedres on Facebook, identified him as a leader of the assault and were willing to testify. But they still had not turned over the surveillance video.

Photo

Kristin Bruan, Mr. Cedras’s lawyer, pushed to see the security footage of the brawl. “Without that video, our guy was going to prison,” she said.Credit
Karsten Moran for The New York Times

“Without that video, our guy was going to prison,” said Ms. Bruan, a staff attorney with the Legal Aid Society.

Ms. Bruan filed a motion for discovery shortly after Mr. Cedres was arrested. Under the law, the prosecution had 15 days to hand over the material or explain why it would not. Fifteen days passed with no reply, then 30, Ms. Bruan said.

Judges have few available sanctions for prosecutors who do not comply with discovery requests.

The judge who presided over a later stage of Mr. Cedres’s case, Troy K. Webber, said a judge could have ordered the video tossed out of the case. But that would have wrongly punished the defense, she said in an interview.

“You have to hope the people will turn over the video,” said Justice Webber, who now sits on a state appellate court.

More than two months after Ms. Bruan’s initial request, the prosecutor wrote that the video “does not show anything/is corrupted,” an email shows. Ms. Bruan pushed back, and after five more months of wrangling, the videos appeared in her inbox.

They showed almost exactly what Mr. Cedres had said they would: In the mayhem, he threw two punches to free the club owner’s son from a bear hug. A separate fight spilled down the street, where a crowd of people beat the man who was ultimately seriously injured. After a year and a half and 22 court appearances, the charges were dismissed.

Patrice O’Shaughnessy, a spokeswoman for the Bronx district attorney’s office, declined to comment on the case.

After Mr. Cedres lost his job, he was arrested a number of times for petty offenses such as jumping subway turnstiles. He now lives with his mother and earns money as a driver, but he said his stability felt fragile.

“I’m getting little things back, but I shouldn’t have lost it to begin with,” Mr. Cedres said.

Ambiguity and Inconsistency

Prosecutors are supposed to turn over evidence that is favorable to the accused — called Brady material after a landmark 1963 Supreme Court decision — regardless of other discovery rules. But the Supreme Court never set deadlines, and lower courts have split over whether Brady material must be turned over before a plea.

What constitutes such evidence is left to prosecutors to determine, and the line is not always clear.

The New York court system is expected to approve a rule change soon: Judges would issue an order in criminal cases reminding prosecutors of their Brady obligations. The order would not change what prosecutors must turn over, but it would for the first time allow judges to hold in contempt prosecutors who willfully violated the obligation.

Winston Jones, charged with a Brooklyn break-in, reached a more favorable plea deal after he was given access to grand jury testimony.Credit
Karsten Moran for The New York Times

But the deadline in the order would be 30 days before trial — well after most plea negotiations have taken place.

The pressure to plead can be enormous, especially because offers tend to go up as time goes by. Mr. Cedres was able to post bail with a loan from his parents, but more than 35,000 people in New York City are jailed each year because they cannot make bail, according to the Independent Budget Office. People held in jail are more likely to plead guilty, two University of Pennsylvania studiesshow, not because they are more likely to be guilty but because that is often the surest way to get home more quickly.

Kimberly Overton, a prosecutor who runs training programs for the North Carolina Conference of District Attorneys, said a 2004 state law requiring prosecutors there to turn over most of their files automatically very early in a case helped to clear up any potential ambiguity over Brady material. “There is no decision for a prosecutor to make now,” she said.

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Adding to the ambiguity is that discovery policies vary not only by state but also by prosecutor.

While Brooklyn has a more open policy, the Queens district attorney’s office will negotiate pleas only before a grand jury indictment, a point when the law requires no discovery at all — and sometimes before there is time to thoroughly examine the evidence it has.

“We disclose what we need to disclose,” Mr. Ryan said.

More than a dozen defense lawyers and judges who practice in Manhattan said the district’s attorney’s office there hewed closely to the restrictive state law. Even the name of the accuser is routinely withheld until the eve of trial, they said.

The Manhattan district attorney, Cyrus R. Vance Jr., disputed the characterization. “We do provide more than the law allows already,” Mr. Vance said. “If it’s in the file, we tell our assistants to turn it over, except in situations that involve witness safety.”

In late May, Mr. Vance’s office announced a new policy to provide discovery at arraignment in some felony cases when the main witness is a police officer.

Original security video footage obtained from the New York City Police Department showing Winston Jones breaking into a bodega in November.

AUG. 7, 2017

Celina Fang/The Marshall Project

Mr. Ryan and Mr. Vance acknowledged that defense lawyers who had good relationships with prosecutors were apt to get an earlier crack at discovery than others.

“When serious lawyers understand they’re dealing with serious lawyers on the other side, that usually leads to a level of trust that accelerates discovery,” Mr. Vance said.

Faster discovery, advocates of the change argue, can lead to fairer outcomes. This happened in the case of Winston Jones.

In November, Mr. Jones was arrested and charged with breaking into a Brooklyn bodega and stealing Red Bulls, cigarettes and cash. At 35, Mr. Jones had been arrested in connection with dozens of petty crimes, but this time he was charged with burglary, a felony.

Prosecutors offered him a plea: one and a half to three years in prison if he took the offer on the spot, said his attorney, Scott Hechinger of Brooklyn Defender Services.

Mr. Jones’s memory of the night was blurred by alcohol, but he did not view the crime as serious. He refused, and was sent to Rikers Island.

Because of Brooklyn’s discovery policy, three months after his arrest Mr. Jones was able to read the grand jury testimony of an employee who recognized him from surveillance videos. He saw himself on tape, rummaging through coolers and slurring his words.

After insisting that he had done nothing, Mr. Jones began to talk about a lifetime of alcohol abuse. Mr. Hechinger took this back to the negotiating table, and in June, Mr. Jones pleaded guilty to attempted burglary in exchange for inpatient drug and alcohol treatment. If he does well, he will avoid prison, and the case will be dismissed and sealed.

Opposition From Prosecutors

James Yates, who in 1979 helped draft New York’s current discovery law as a young Assembly staff member and who went on to serve more than 18 years as a state judge, said he believed the law had been “abused, twisted and turned” to withhold information.

But he said he was skeptical that the new bill pending in the Legislature would overcome opposition by prosecutors.

If the law changes, “we’re going to see a huge increase in crime because no one’s going to cooperate,” said Scott McNamara, the district attorney of Oneida County and the president-elect of the state district attorneys association, which has opposed changes to New York’s discovery rules.

As one of many examples, Mr. McNamara cited the 2013 case of David McKithen, who was facing drug possession charges in Buffalo when he obtained grand jury testimony of witnesses through discovery. Soon after, witnesses said, they and their families began receiving threats. One refused to answer questions on the stand. Mr. McKithen was found guilty of witness tampering and intimidation.

A New York State Bar Association report concluded that states with more open systems did not have worse problems with witness intimidation than New York. In Brooklyn, Mr. Gonzalez said, threats to witnesses occur because the defendants already know who they are.

Aside from safety concerns, some prosecutors scoff at the notion that defendants need an earlier peek at evidence to know if they are guilty.

The bodega that Mr. Jones broke into in November.Credit
Karsten Moran for The New York Times

“What the defendant may not know is the strength of the prosecution’s case, and therefore how likely it is that he can ‘beat’ the charges despite his guilt,” wrote three prosecutors who dissented from the state bar association report.

Defense lawyers respond that they need discovery to know whether the facts of the case warrant the charges or whether there are witnesses who might provide an alternative view. In New York, prosecutors do not have to provide witness names at all if the witnesses are not expected to testify.

Isaiah Spry learned this lesson in December 2012, when he was bewildered to discover that he had been charged with attempted possession of a loaded firearm, a violent felony that carried up to seven years in prison. He was celebrating his 27th birthday with his girlfriend, he said, when the couple began fighting in the lobby of their Manhattan apartment building.

When the police arrived, he kicked and flailed, according to court documents. A police captain later said Mr. Spry had tried to wrest an officer’s gun from his holster.

Prosecutors offered him a plea deal of two years in prison, said his attorney, Robert Bickel of the Legal Aid Society. Mr. Spry refused. He spent five months in jail before finally agreeing to plead guilty to the felony in exchange for probation.

“I knew I was innocent, but I didn’t know what they had against me,” he said.

Just as Mr. Spry was entering his plea, the judge called the lawyers up to the bench and advised the defense to go to trial, Mr. Bickel recalled. The judge had seen something the defense had not: the grand jury testimony.

When prosecutors eventually turned over the testimony, Mr. Spry learned that the officer did not recall his grabbing for the gun.

The judge, Justice Gregory Carro of the State Supreme Court in Manhattan, confirmed Mr. Bickel’s account but declined to comment further. A spokeswoman for the Manhattan district attorney’s office declined to comment on the case.

At trial, Mr. Spry was convicted of two misdemeanor counts but acquitted of the weapons charge.

This article was produced in collaboration with The Marshall Project, a nonprofit news organization that focuses on criminal justice issues.

A version of this article appears in print on August 8, 2017, on Page A1 of the New York edition with the headline: Videos Withheld, Leading Suspects To Accept Prison. Order Reprints|Today's Paper|Subscribe